W.A. 1312 of 2023 in W.P.(C).5260/2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945** **WA NO. 1312 OF 2023** **WP(C) 5260/2009 OF HIGH COURT OF KERALA** ## **APPELLANT/2ND RESPONDENT IN THE WPC** SMT. SUKUMARIAMMA AGED 59, THOPPIL VEEDU, PAKKIL P.O., KOTTAYAM,, PIN - 686012 BY ADV LIJI.J.VADAKEDOM ## **RESPONDENTS/PETITIONERS AND 1ST RESPONDENT IN THE WPC** 1 THE SECRETARY KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695004 2 THE DEPUTY CHIEF ENGINEER TRASMISSION CIRCLE KERALA STATE ELECTRICITY BOARD, POOVANTHURUTHU, KOTTAYAM, PIN - 686012 3 THE INDUSTRIAL TRIBUNAL IDUKKI, PIN - 685531 BY ADVS. ASOK M.CHERIAN ANTONY MUKKATH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).1312/2023 2 ## **ANU SIVARAMAN & C.PRATHEEP KUMAR JJ.** --------------------------------- ## W.A.1312 of 2023 in W.P.(C).5260 of 2009 ----------------------Dated : 6[th] November, 2023 ## **JUDGMENT** ## **C.Pratheep Kumar, J** This writ appeal has been preferred by the 2[nd] respondent in the W.P.(C) against the judgment of the learned Single Judge, setting aside the award dated 19.08.2006 of the Industrial Tribunal, Idukki. 2. The appellant was working as Sweeper at 110 KV Substation of KSEB at Chengalam from January 1996 to August 1997 and from September 1997 to March 1999 at Substation Sub-Division, Poovanthuruthu. She was denied employment in March 1999 without attributing any reasons and also without complying with the procedure mentioned in Section 25F of the Industrial Disputes Act, 1947 (in short, Act 14 of 1947). She preferred a complaint before the Labour Department and it was referred under Section 10 of Act 14 of 1947. As per the impugned award, the Tribunal found that the appellant had worked for the period from 1.9.1997 to 25.3.1999, ie, WP(C).1312/2023 3 more than 240 days in the previous year. The Industrial Tribunal further found that the KSEB has not complied the mandate of Section 25F of Act 14 of 1947 and therefore directed reinstatement of the appellant with back wages and all other benefits. 3. The 1[st] respondent herein, namely, the Secretary, KSEB, challenged the award of the Tribunal by filing W.P.(C).5260 of 2009 before this Court. The learned Single Judge allowed the writ petition, holding that the employment of the appellant was piece-rated employment and not contractual and therefore, the employment was under Section 2(oo)bb of Act 14 of 1947. Aggrieved by the above judgment of the learned Single Judge, the appellant preferred this writ appeal contending that her employment was not piece-rated employment and that even the 1[st] respondent had no such case. According to her, a part-time sweeper cannot be considered as a piece-rated employee. In **Anil Mithra K.V. And Another v. Sree** ## **Sankaracharya University of Sanskrit and Another (2021 KHC** **6654)** , the Hon'ble Apex Court held that the manner in which appointment made was immaterial in considering the grant of benefit under Section 25F of Act 14 of 1947. Therefore, according to the WP(C).1312/2023 4 appellant, she is entitled to get the benefit under Section 25F, as she had worked for more than 240 days in the preceding year. 5. Now the points raised for consideration are the following :- - (i) Whether the appellant is entitled to get the benefit of Section 25F of Act 14 of 1947. (ii) Whether the impugned judgment of the learned Single Judge setting aside the award dated 19.8.2006 of the Industrial Tribunal, Idukki, calls for any interference in the light of the grounds raised in the writ appeal. 6. Heard both sides. 7. Admittedly, the appellant was working as a Sweeper at 110 KV substation of KSEB at Chengalam and thereafter, at sub-division, Poovanthuruthu. It is also not disputed that since March, 1999, she was not engaged by KSEB. According to the appellant, during the previous year, she worked for more than 240 days as sweeper and as such, denial of employment without complying the mandate of Section 25F of Act 14 of 1947 is unsustainable. According to her, the finding of the learned Single Judge that the employment of the appellant was piece-rated employment and not contractual, is not WP(C).1312/2023 5 correct. Therefore, the learned counsel for the appellant urged for setting aside the impugned judgment passed by the learned Single Judge and to restore the award passed by the Industrial Tribunal. 8. The learned counsel for the appellant relied upon the decision rendered by the Hon'ble Apex Court in **Anil Mithra K.V.** 's case in support of his argument. In the above decision, in paragraph 23 and 24, the Hon'ble Apex Court held thus :- “23. The Scheme of the Act 1947 contemplates that the workman employed even as a daily wager or in any capacity, if has worked for more than 240 days in the preceding 12 months from the alleged date of termination and if the employer wants to terminate the services of such a workman, his services could be terminated after due compliance of the twin clauses (a) and (b) of S.25F of the Act 1947 and to its non-observance held the termination to be void ab initio had and so far as the consequential effect of non observance of the provisions of S.25F of the Act 1947, may lead to grant of relief of reinstatement with full back wages and continuity of service in favour of retrenched workman, the same would not mean that the relief would be granted automatically but the WP(C).1312/2023 6 workman is entitled for appropriate relief for non-observance of the mandatory requirement of S.25F of the Act, 1947 in the facts and circumstances of each case. 24. The salient fact which has to be considered is whether the employee who has been retrenched is a workman under S.2(s) and is employed in an industry defined under S.2(j) and who has been in continuous service for more than one year can be retrenched provided the employer complies with the twin conditions provided under clauses (a) and (b) of S.25F of the Act 1947 before the retrenchment is given effect to. The nature of employment and the manner in which the workman has been employed is not significant for consideration while invoking the mandatory compliance of S.25F of the Act 1947.” 9. In **Sreekumar K. v. Managing Director, KTDC Ltd. and Another (2019 (1) KHC 225)** relied upon by the learned counsel for the appellant, the Division Bench of this Court held that in order to attract the provisions of Section 25F of Act 14 of 1947, there is no requirement of the worker being a permanent employee. 10. The learned counsel for the appellant relied upon paragraph 12 from the decision of the Hon'ble Supreme Court in **Ram** WP(C).1312/2023 7 **Manohar Lohia Joint Hospital and Others v. Munna Prasad Saini and Another (2021 KHC 6484),** which is as follows:- “In view of the facts stated above, it is clear that the first respondent was not a permanent employee but a contractual employee. There is no evidence to establish that the appellant had retained junior workers, such unfair trade practice is not alleged or even argued before us. The first respondent having worked for more than 240 days, termination of his services violated the mandatory provisions of S.25F of the Industrial Disputes Act, 1947. Therefore in the facts of the present case, we modify the order of the Labour Court by setting aside the direction for reinstatement and would enhance the compensation by awarding a lump sum amount.” 11. On the other hand, the learned counsel for the respondents would argue that in view of the newly inserted clause 'bb' to Section 2(oo) of Act 14 of 1947, termination of service of the workman, as a result of the non-renewal of the contract of employment does not amount to retrenchment. According to him, in WP(C).1312/2023 8 this case from the documents produced by the appellant itself it is revealed that she was appointed on contract basis and as such, termination of her service on account of non-renewal of the contract of employment does not amount to retrenchment and as such, the mandate of Section 27(5) is not applicable in this case. 12. Ext.R2(b) work order No.65/98-99 dated 15.1.1999 relied upon by the appellant and issued by the KSEB shows that quotation for the subject work at an estimated rate was called for and the quotation submitted by the appellant dated 15.1.1999 was accepted and it was on that basis, the appellant was allotted the work as sweeper in KSEB for sweeping 220KV and 11 KV control room, battery room, Compressor rooms, Crain rooms, Workshop Mac shed, watchman cabin etc. and the premises of 220 KV substation. 13. From Ext.R2(b) receipt No.1/98-99 it is revealed that the appellant received Rs.500/- towards cost of sweeping of the above area allotted to her as per the above referred work order. Ext.R2(c) certificate states that the appellant had worked as sweeper on contract basis in KSEB from 1.9.1997 to 25.3.1999. Ext.R2(d) certificate states that the appellant had worked as sweeper on WP(C).1312/2023 9 contract basis in the circle store, Poovanthuruthu, from 1.9.1997 to 14.1.1999. In Ext.R2(e) certificate it is stated that she had worked as sweeper and attended her work on all working days during the month of August, 1998. Ext.P2(f) certificate also states that she had attended her work on all working days during August 1998. 14. Therefore, from Ext.R2(b) to (f), it is evident that the appellant worked in KSEB only on contract basis during the period from 1.9.1997 to 25.3.1999. In the memorandum of appeal also her case is that she had worked as sweeper in KSEB on contract basis (Ground E). As I have already noted above, Section 2(oo) (bb) specifically states that termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman on expiry of the period of contract does not amount to retrenchment of that employee. The above amendment was inserted by Act 49 of 1984 and it came into effect on 18.8.1984. Here, the appellant was provided the job of sweeper on contract basis as per Ext.R2(b) work order dated 15.1.1999, after the above amendment came into force. Therefore, termination of service of the appellant on account of non-renewal of Ext.R2(b) work order WP(C).1312/2023 10 does not amount to retrenchment as defined under section 2(oo)(bb) of Act 14 of 1947 and as such, the mandate of Section 25F of the above Act does not apply to the facts of this case. In the above circumstance, the finding of the Industrial Tribunal that the termination of service of the appellant without complying the mandate of Section 25F of Act 14 of 1947 is illegal and unsustainable is incorrect. Therefore, the learned Single Judge was perfectly justified in setting aside the award dated 19.08.2006 of the Industrial Tribunal, Idukki. We do not find any valid grounds to interfere with the findings of the learned Single Judge in the impugned judgment and as such, this appeal is liable to be dismissed. In the result, the Writ Appeal is dismissed. **Sd/-** ## **ANU SIVARAMAN, JUDGE** **Sd/-** ## **C.PRATHEEP KUMAR, JUDGE** Mrcs/27.10.2023 WP(C).1312/2023 11 ## **APPENDIX OF WA 1312/2023** PETITIONER ANNEXURES Annexure1 THE COPY OF THE ORDER DATED 5/12/2022 IN WP(C) NO. 5260/2009 PASSED BY THE SINGLE JUDGE